Guantanamo Bay Failed

Courts are overturning the military tribunals' few convictions, while the notorious prison costs taxpayers millions.

Last week the Obama administration announced that it is shuttering the office tasked with closing Guantanamo Bay prison. The storied facility will soldier on, despite its questionable treatment of prisoners and their lawyers, its opaqueness and secrecy—and above all, prosecutors’ flimsy record on convicting actual terrorists.

Of the hundreds of prisoners who have cycled through the Guantanamo Bay military prison, only a handful have been convicted of anything. Now, thanks to a recent federal appellate court decision, even those convictions could be overturned, leading one to ask: what has the military tribunal been doing all these years?

Central to this question is a January 25 ruling that effectively reversed the conviction of Ali Hamza Bahlul, an al-Qaeda propagandist and once personal secretary to Osama bin Laden. He was convicted after a very brief trial in 2008 on charges of material support and conspiracy to commit terrorism. These “inchoate” or indirect offenses were invalid, according to the U.S. Court of Appeals for the District of Columbia Circuit, because they were not recognized as stand-alone war crimes when he was first captured in 2004, before the current military commission was convened in 2006.

This was the second such ruling in a year. In October, the same court (not considered a liberal by any definition), overturned the conviction of Salim Hamdan, who as bin Laden’s driver was picked up carrying weapons and al-Qaeda documents in Afghanistan in 2002 and was similarly charged with material support for terrorism. At the time of the verdict, the government was confident that the court’s decision—which ruled Hamdan could not be convicted on a charge that was not valid before 2006—was so narrow that it would have no affect on future cases.

But here we are, four months later, and one more prosecution bites the dust.

The government will not pursue an appeal for Hamdan, and it has not yet announced what it will do in al-Bahlul’s case. A recent Associated Press story suggested that the government is inclined to appeal, arguing that the U.S. Military Code of Justice gives it the authority to charge suspects with inchoate crimes under the American law of war (see their filings on al-Bahlul here).

“I think how important this is depends on what the government does next. If the government packs up and goes home and doesn’t pursue a further appeal it will be the last word, at least for now, on the government’s ability to try these inchoate offenses in military commissions,” said Steven Vladeck, professor at American University Washington College of Law.

If that happens, or an al-Bahlul appeal is brought to the Supreme Court and the government loses, Vladeck added, it “will drastically reduce the number of cases we will see after the KSM [Khalid Sheikh Mohammed] trial,” primarily because the vast majority of prisoners now at Gitmo were captured before 2006 and are not suspected of committing direct acts of terror.

Vladeck elaborates on why he thinks the government’s case for upholding conspiracy and material support as stand-alone charges is “thin” anyway, here.

“KSM” and his four 9/11 conspirators are the biggest fish to go before the commissions since Guantanamo opened shortly after the 2001 terror attacks. Zacarias Moussaoui, tried as the “20th hijacker” on felony conspiracy charges for his role in 9/11, was convicted in federal civilian court in 2006. Critics point to the relatively short time it took to execute his case compared to the sluggish proceedings at Gitmo. (KSM was picked up in Pakistan in 2003, and his lawyers predict the trial, still in the pre-trial stage, could take years.)

Now Moussaoui is tucked away for life at a Supermax prison in Colorado, costing the tax payer an estimated $65,000 to $90,000 a year, while Gitmo has 166 prisoners—86 of whom have already been cleared for release—costing the taxpayer $800,000 each annually, according to Carol Rosenberg, longtime Guantanamo reporter for McClatchy News, who in 2011 called it the “most expensive prison on earth.” (Another assessment puts the per prisoner cost at $687,747.) Rosenberg notes that Gitmo is

still funded as an open-ended battlefield necessity, although the last prisoner arrived in March 2008. But it functions more like a gated community in an American suburb than a forward-operating base in one of Afghanistan’s violent provinces.

“From a fiscal point of view, this is just stupid. And the legal process has also failed to deliver as advertised,” Samuel Morison, a civilian lawyer with the Chief Defense Counsel for the U.S. Military Commissions, told The American Conservative in an interview. “If these guys had been sent to federal courtwe would have sorted this out a long time ago. The taxpayers are simply not getting their money’s worth.”

Aside from al-Bahlul and Hamdan, other convictions could be affected by the court’s recent ruling. These would include those of Australian David Hicks, who was convicted of material support and released in 2007; Ibrahim al-Qosi, who was released in July to his home country in Sudan after a conviction for material support and conspiracy; and Omar Khadr, who was picked up in 2002 at the age of 15 and was finally repatriated back to Canada in 2012 after pleading guilty to murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, material support, and spying. He is up for parole this year.

Experts who spoke with TAC said all three signed waivers in their plea agreements not to appeal their convictions. But Morison believes those waivers could be challenged as well.

“The ultimate result of this is that after 11 years and nearly 800 people who have been brought to Guantanamo … no more than a handful are likely to be charged with a crime,” he said. “They don’t have any evidence that most of these guys did anything other than maybe hanging around with the wrong crowd. That might be enough to charge you in federal court, but not in military court.”

Not much of a track record for a bureaucracy that has not only cost the American government $114 million a year but has put its reputation in a sling throughout the world. On Gitmo’s 11th anniversary last month, demonstrations were staged in cities across the globe, with much of the anger directed at President Obama—who had pledged to close the prison four years ago, and now looks to be digging in his heels.

OF course gitmo failed, it was inherently wrong. It was an attempt to skirt the rules, so that the government can behave like nazis. Assassination lists, uncharged detentions, torture…the nazis must be rolling in their graves wondering why they got into such trouble for the same stuff. Heck, Japanese officers were executed at the end of the war because of their part in waterboarding, which is apparently cool now. Hypocrites.

The failure of Guantanamo does not begin or end with Guantanamo, but with a policy that called all combatants on the battlefield terrorists, thereby muddying the waters, irrevocably.

This policy designed by democrats and republicans, liberals, progressives, libertarians and conservatives and the supported by the public.

And those of us stupid enough to question its logic and effectiveness, as sometimes the illogical actually works. Are left with gloating, I told you so or perhaps, some combination of what we have wrought, as perhaps the demon we feared we have created to be visited upon in as many prisoners at Guantanamo or the myriad os rendition captives innocent or guilty — have experienced the imperialism so long preached on the streets, in classrooms, and mosques around globe. Each prisoner will take with him a story

— which may come back to haunt us in devestating waves or vengeance subtle and not so much.

My wife and mother-in-law and I were sitting on the couch watching a report on Gitmo. My MIL looked over casually and asked, “I don’t understand why they are even alive”, to which my wife agreed. Beyond the esoteric, academic, abstract, gobbelygook of legalese sophistry, they are virtual killing robots, Borg-like programmed and hard wired to keep on murdering until their power is turned off.

Been there, done that. I argued from the start for treating “terrorism” as the crime it always has been, instead of a “war”. In 2006, the former assistant CIA Legal Counsel John Radsan (who had been involved under Rizzo at the start of the “dark side” stuff) and I published dueling op-eds on the issue. Check how unbelievably ignorant Radsan’s law review was about how Moussaoui should not have been criminally prosecuted but handled by the military or CIA: http://www.wmitchell.edu/lawreview/Volume31/Issue4/4Radsan.pdf and then take a look at the op-ed I wrote in response to an earlier one of his: http://www.coleenrowley.com/print_pages/print_3_trib_5_13_06.php

It never matters who turns out to be right, however. Radsan and his neo-con ilk continue to be enormously influential while I can only “gloat” to myself about having been right.

On Monday, at the Univ. of MN law school, the keynote speaker in their “Future of Warfare Symposium”, told the audience that the “rule of law” is now considered a “waning factor”. Radsan was on the U’s drone bombing panel wherein all three law professors agreed that fully-automated drone bombing is better than having a fallible human in the loop as sometimes humans demonstrate a natural reluctance to killing and therefore hesitate to press the button whereas pre-programmed, fully automated drones will operate flawlessly and better.

It’s hard to believe Obama (or any other decent human being) wouldn’t want to close Gitmo. Obama ran into a political buzz saw, maybe because he’s black, and maybe because retarded GOP politicians call him a Muslim. If public uproar gets loud enough, Obama will move to close Gitmo.

(All prisons are expensive to operate. You can’t amortize the cost over the number of inmates. Feeding inmates swill, and giving them a steel slab to sleep on, does not cost $75,000 a year. Someone is making a killing on prisons.)

US has had many gitmo-like arrangements in the past. US history is littered with coralling and confinement of human beings into cages and camps. Entire nations or ethnic groups were put into “reservations” in desert environs wihtout food and watrer where the Native American nations begged for rations from the US Army. Poor fishermen, shop keepers and industrial workers of Japanese extraction were confined to concentratrion camps while their sons were sent to battle their own ancestors. Muslims consttiute a tiny minority int eh US, less than 1 %, yet Muslim-specific laws have been passed, there congrssional hearings, daily TV shows, movies and media bashing of Muslsims and Islam, even dedicated websites attack Muslims and Islam. Somebody is spending a lot od money doing this.The law enfrocing agencies concot plans regualry ot trap naive young Muslims, take them to court where prejudiced jury and judges give the maximum senetences possible. Only in America would such judicial charade be taken serioulsy, the US judicial system is now the laughing stock of the Muslim world. This is judicial lynching, Americans courts and public have a long expereince of it.

gitmo’s true “failure” is the failure of the rule of law and the american republic. holding persons indefinitely without trial, or even charging them with a crime is right out of stalin’s playbook. the media and most of the citizenry of this country fully indifferent or totally oblivious. these men were routinely and systematically tortured for almost a decade. the entire gitmo operation is nothing more than a beta test for the citizens of this country. think disappearing, indefinite detention and torture isn’t for you? think again.

“Killing the Chickens, to Scare the Monkeys ???” You bet..!!! Or maybe better as practice for killing monkeys……

“I think how important this is depends on what the government does next. If the government packs up and goes home and doesn’t pursue a further appeal it will be the last word, at least for now, on the government’s ability to try these inchoate offenses in military commissions,” said Steven Vladeck, professor at American University Washington College of Law.

“the government’s ability to try these inchoate offenses in military commissions”??????? What would that be..???

Wouldn’t you know it…. It’s CONSPIRACY….. !! But the “C” word has become verbage non gratas … so we get inchoate…

This impeccable attention to legal detail might appear earnest…. except when we turn our eye to the tremendous number of crimes the U.S. and it’s partners in crime have committed to bring these men to book for THEIR actions. The BREATHTAKING SCOPE of these crimes are “State secrets” and the perpetrators are.. or seem to be above the law.. Why are these foot soldiers on trial when far worse and less moot crimes have been committed in the highest offices of the U.S. government..?? Torture, murder and RAPE are NOT called to account when it’s the U.S, officials doing the crimes…

This is the rule of law we are trying to bring to the rest of the world…?? No thanks…